With all of the media’s attention focused on the Presidents SOTU address, Eric Holder was up on the Hill being questioned by the Judicial Senate Committee. During the questioning, Sen. Mike Lee confronted Eric Holder regarding the constitutionality of the President’s use of executive orders. The Senator reviewed the standard legal test regarding executive orders:
Lee had based his question on a standard legal test, first described by Supreme Court Justice Robert Jackson, who said the president’s authority to issue executive orders is strongest when he does so with the backing of Congress (category one), more dubious when he issues an order pertaining to a topic on which Congress has not passed a law (category two), and weakest when the executive order is “incompatible with a congressional command” (category three),
The Attorney General admitted he was not sure which category the President’s executive orders on the employer mandate and the minimum wage fell under, but believed the President was “at the height of his constitutional powers” issuing the orders.
As you can imagine, there was some disagreement.